ROBERT GOGOLEWSKI sentencing transcript re: child pornography trafficking
was a public hearing in a United States District Court and it is also
currently part of the public record in an appeal in the Ninth Circuit Court
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff
vs.
ROBERT GOGOLEWSKI,
Defendant.
Case No. 1:06-cr-00347-AWI
Hearing re: sentencing.
Fresno, California
Monday, July 21, 2008
TRANSCRIPT OF PROCEEDINGS
BEFORE THE UNITED STATES DISTRICT JUDGE
APPEARANCES:
For Plaintiff: AUSA (Assistant United States Attorney)
For Defendant: DEFENSE ATTORNEY
Court Recorder
U.S. District Court
Fresno, CA 93721
Transcription Service: Reporting &
Transcription
Sacramento, CA 95820
Proceedings recorded by electronic sound recording;
transcript produced by transcription service.
FRESNO, CALIFORNIA, MONDAY, JULY 21, 2008, 9:51 A.M.
THE CLERK: No. 1:06-cr-347, United States v.
Robert Gogolewski, sentencing.
(Pause.)
MR. AUSA: Good morning, Your Honor. Good morning,
Your Honor. AUSA for the United States.
MR. DEFENSE ATTORNEY: Good morning, Your Honor. DEFENSE ATTORNEY
on behalf of Robert Gogolewski. We're ready, Your Honor.
THE COURT: All right. Okay. This is the date and
time set for consideration of the presentence report and for
sentencing.
Mr. Gogolewski, in this case, I have received and
reviewed the presentence investigation report and also the -- a
number of various sentencing documents that have been submitted
both on your behalf, by the government, and I've also received
some letters submitted on your behalf and two medical reports
and a survey or a study submitted by an individual that I have
also reviewed.
Have you had a chance to read over and review all of
those documents with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. All right. On behalf of Mr.
Gogolewski, then, first, with respect to additions or
corrections to the report, any additions or corrections?
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MR. DEFENSE ATTORNEY: None. None, Your Honor, thank you.
THE COURT: All right. Comments, then, regarding
sentencing?
MR. DEFENSE ATTORNEY: Your Honor, just briefly. I know that I
submitted lots of material, and I don't want to repeat
everything that's in the materials. At the outset, I would
like to say that we recognize -- Mr. Gogolewski recognizes that
this is a very, very serious case, these are very serious
charges.
I think that for him I would have to say that he came
to this realization gradually, but we have spent a lot of time
together talking about this. As the Court knows, he was seen
by -- and evaluated by both a psychiatrist and a psychologist.
Notwithstanding that, Your Honor, we believe that the
presentence report and recommendation of 235 months while
correct, as -- while a correct guideline sentence calculation,
we believe that it is excessive and that it is greater than
necessary to achieve the legitimate statutory purposes of
sentencing.
Particularly in light of the recent changes to the
law occurring this year, and I believe the Ninth Circuit having
been recognized in the Zavalla and Cardi (phonetic) decisions
which were filed in March of 2008, I think that we're at a
point where -- a point of departure in terms of sentencing
under the advisory guidelines. They have been advisory for
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some time.
Nonetheless, I think that they are advisory now in a
new way, because I think now it has been made clear and
explicit that they're not to be presumed to be reasonable, or
presumed to be the correct sentence. They are to be considered
as one factor among many factors in the sentencing calculus.
But it does -- and I think we have reached a point
where the overarching principle of sentencing is to arrive at a
sentence that is sufficient, but not greater than necessary to
achieve the purposes of sentencing. And I think we're -- under
these cases, we're at a point where an individualized
determination based on the facts, and all of the factors is to
be made.
I believe that a sentence of 235 months is excessive
because it is about five months short of the statutory maximum.
There is a mandatory minimum in this case. It's five years,
and we recognize the seriousness of this case, and we're not
asking -- we're not coming in here and asking the Court -- that
the Court impose the mandatory minimum. You know, we're not
saying he's a first time offender, Judge, give him the
mandatory minimum.
We recognize the seriousness of the offense, and
we're asking the Court to impose, we think, a significant and a
long sentence. It's 10 years, and we think that that will be
enough to punish Mr. Gogolewski, to make a impression upon
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others, to deter others. We think that it would promote
respect for the law, whereas we think that a sentence that is
draconian does not promote respect for the law.
And probably -- well, just as important, a term of 10
years would permit him an opportunity in a federal institution
to receive treatment, and to receive help, and hopefully to
gain some insight into his behavior.
Your Honor, we think that the guideline sentence in
this case is excessive, also because we do not believe that the
guidelines in this case are the result of empirical study and
research. We do not believe that the guidelines reflect the
latest research and knowledge in this field, and to a large
extent, I believe that they reflect the -- in some pieces of
legislation, they reflect morality earmarks. They reflect
times that Congress has acted even against the opinion of the
Commission.
Thirdly, Your Honor, we believe that the guidelines
in this case are excessive and unreasonable because they
explicitly fail to consider many of the personal
characteristics of Mr. Gogolewski.
Your Honor, in this case, we recognize the
seriousness of the offense. We have acknowledged that Mr.
Gogolewski distributed many images, and we have acknowledged
that in fact he traded images. Some of that is addressed in
the -- well, actually, I think it's addressed in both of the
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medical reports, the report of Dr. Halsepian, who -- if he
takes some of Mr. Gogolewski's comments, refers to them in
part, and the Court has the entire report, but he refers to
them in part as a fantasy that served a purpose that he needed.
Now, since we do recognize the seriousness of these
charges, we're not trying to hide the ball here. Dr. Barrie
Glenn (phonetic) has stated that she feels that he looked at
images, and distributed images for purposes of sexual
gratification.
She believes that he's in denial. Of course, that is
not uncommon, and she also goes on to state that with
treatment, she would consider him at low risk to re-offend, and
that he -- both doctors say that he's amenable to treatment.
Dr. Halsepian states that he's not a pedophile, and
both of them, I think, really emphasize the very troubling, I
would say, you know, horrendous history of childhood abuse that
he, himself suffered that included physical abuse, sexual
abuse, and a very difficult upbringing.
They discuss in terms of their specific disciplines,
their own diagnoses, and their recommendations for treatment,
but both of them emphasize that treatment is what is essential
here. And that is one of the reasons why we believe that --
that's one -- one of the things that makes the 10 year sentence
a reasonable sentence. We believe that he needs to have a
lengthy sentence in order to carry out and benefit a treatment
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-- benefit from a treatment regimen.
But we don't think that the Court should follow the
guideline formula and simply practically max him out just
because that's the way the numbers add up.
So in this case, Your Honor, we're asking the Court
to look at him as an individual case, and again, give him a
sentence that's enough time to do what needs to be done, but we
submit to the Court that giving him almost 20 years is more --
is greater than necessary to do what needs to be done.
THE COURT: Okay. All right, Mr. Gogolewski, is
there anything you wish to state about the report or your
sentencing before I impose sentence in your case?
THE DEFENDANT: I'd just like to apologize again,
Your Honor, for taking the government's time, and I do accept
responsibility for what I've done.
THE COURT: Okay. On behalf of the government?
MR. AUSA: Your Honor, I just wanted to confirm,
does the Court have Docket Items 34 and 37? Those were, Your
Honor, the government's sentencing memorandum and then the
reply.
THE COURT: Yeah. I have them.
MR. AUSA: Okay. And Your Honor, in there, we set
forth the reasons why we believe that an overall reasonable
sentence would be that recommended by the probation office,
which would include the term of imprisonment suggested at 235
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months, and we would ask the Court to impose a lifetime term of
supervised release.
And the defendant has focused almost exclusively on
one of the 3553(a) factors, and implicit in his argument, it
seems, is that because of recent Supreme Court cases, that the
Court can essentially, in effect, disregard the guidelines, and
then just look at the personal circumstances of the defendant
and rely mostly on that in coming to its sentencing decision.
But I think the Court knows that that's really not
what the law is. That's not the Court's task here. The Court
has to consider the guidelines as one factor, and then look at
all of the 3553(a) factors. And while the defendant points to
part of one of those factors, specifically, item one, in its
entirety, that factor talks about first, the nature and
circumstances of the offense, and not much time is directed by
the defendant on that item, obviously because that's
detrimental to him.
The government has given the Court information which
is just a snapshot view in time of some of the trafficking in
which he was involved, and we've outlined from the period of
March 18th, 2006 through April 12th of 2006 the extensive
nature of his communications with other people, and the number
of images that he sent to those people and received from them.
And that is outlined in visual form, and there's a summary
attached with it, and that's just one period in time.
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That doesn't cover the entire offense conduct, which
I think compounds the seriousness of his offense. This is not
somebody who simply, like many people, received images, and
collected them, and then used them for his own benefit.
Clearly he did that, but he did a lot more, and that's where
the harm comes in, and that's where the nature and
circumstances of the offense justify the recommended sentence.
In addition, the second factor, to reflect the
seriousness of the offense, and to promote respect for the law,
and provide just punishment, to afford adequate deterrents to
protect the public from further crimes of the defendant and
provide him with needed education or a vocational training,
medical care, or other correctional treatment in the most
effective manner.
The government would submit that all of those weigh
in favor of the recommended sentence of the probation office,
as do the other factors, specifically, the kind of sentences
available, and the range which is established, and the policy
statements. We've outlined those in some detail, and it's
something that obviously has evolved over time both by Congress
and the Sentencing Commission to escalate the base offense
levels, and to distinguish between persons who merely obtain
and possess these images, and those who traffic in them.
The offense level went up after the protect act was
passed, and separate enhancements are in place to take account
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for the nature and number of images. And in this case, all of
those enhancements apply, and that's why the offense level is
what it is.
In addition, he is in criminal history category two,
and that further distinguishes him from other people who have
no prior criminal history. He does have a prior conviction for
his military misconduct, and that accounts for his placement in
criminal history two.
And the government would note that although the
Booker decision came out in 2005, and counsel would suggest
that the trend judicially has been to open up the sentencing
scheme to let courts do what they want, Congress has
simultaneously continued to devote attention in the area of
child sexual exploitation offenses and passed on July 27th,
2006, the Adam Walsh Act, which in the government's view, shows
the government's -- I mean Congress's continued emphasis on
seeing that appropriate punishment is rendered in each of these
cases.
Rather than look at one case, as counsel has filed I
believe as of Friday, in which a court did not follow a
guideline range, and indeed imposed a substantial departure or
variance, the government has pointed this Court to other, in
the government's view, more relevant cases and sentencings.
We don't have to go through those in detail, because
those are set forth in Docket Item 34, but one of the reasons
10
for doing that is because one of the 3553(a) factors is to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.
And in those cases, the government has pointed to sentences of
295 months, 210 months, and several cases a sentence of 235
months, 210 months, which was the high end of the range, and
those are cases where there was similar conduct -- not
identical, but similar in that there was trafficking and images
of child pornography.
Even in cases where the persons did not traffic, but
simply received and possessed, the government has pointed to
several cases where the Courts imposed the high end of the
range, and in one case referenced on page 13, the defendant
there was 22 years old, he was serving honorably in the U.S.
Navy, also at the Lemoore Naval Air Station and had in that
case absolutely no prior record, whereas in this case,
obviously the defendant does have a prior record. The judge
there thought it was appropriate to impose the high end of the
range.
The other cases are cited where the high end of the
range was imposed. So it would, in the government's view be
unfair to defendants who have engaged in similar conduct to
have a substantial departure based on the personal
circumstances of this defendant.
And even the people who have written letters on his
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behalf, have suggested that that would not be an appropriate
course of action. For instance, Doug and Carolyn Sey
(phonetic) have written, "Robert's past abuse and neglect are
no excuse for his conduct. He should be punished because what
he did was wrong."
Reverend Milo Mar (phonetic) has written that, "It
grieves me to know the serious offense that he has committed.
I realize such offenses demand punishment and that he must pay
for his misdeeds."
So even some of the people who have written in
support of the defendant recognize that although if true, his
upbringing was certainly not something that anybody would want
to go through. It's not an appropriate fact to excuse his
conduct, and it doesn't justify a lower sentence.
On the issue of supervised release, we've pointed the
Court to a recent Ninth Circuit case, which upheld the
imposition of a lifetime term of supervised release and
referenced cases from other circuits where similar terms were
upheld.
So for the reasons outlined in the memorandum, and
particularly taking into account the extensive nature of his
trafficking, and the impact that that has on the victims in the
case, we would ask the Court to follow the recommendation of
the probation office.
Thank you, Your Honor.
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MR. DEFENSE ATTORNEY: Your Honor, if I could respond briefly?
I do appreciate the government's concern for the
rights of defendants who have previously been sentenced by this
Court. You refer to the case cited at page 13 of his filing,
and that's the U.S. v. Peterson, and he refers to the fact that
that person got the top of the guidelines. Well, the top of
the guidelines was 10 years. It wasn't almost 20 years.
Other cases, Your Honor, these other cases before the
law of sentencing changed as dramatically as it has, are really
of limited use, I believe. Well, for one, because the law was
different, the Court did not have -- had not been directed by
the Supreme Court and by the Ninth Circuit Court of Appeals
to -- not to presume that guidelines were reasonable, and now
it's very clear that every defendant is entitled to an
individualized sentence.
And I am not arguing that the Court now should ignore
the guidelines in any case, really. I'm arguing that he Court
should consider the guidelines as one of the sentencing
factors. I am arguing that the Court should individualize
sentences, and I do believe that in Mr. Gogolewski's case, his
history and characteristics do -- are part of the context of
why he did what he did, and I think that that is addressed in
the reports of Drs. Halsepian and Barrie Glenn.
I do not think it condones or excuses his conduct.
That is why we are asking the Court to impose a term of 10
13
months [sic].
In terms of supervised release, Your Honor, I -- the
Court obviously has the authority to impose up to lifetime
supervision. I think that if the Court were to impose a term
of -- impose a term of 10 years, that the Court should impose a
substantial term of supervised release for obvious reasons.
In terms of the letters written on behalf of Mr.
Gogolewski, I have spoken to every -- spoken either
telephonically or through e-mail communications with every
person who has offered a letter. They know what this case is
about. They do believe he should receive -- he should be
punished, but to a person they all believe that his background
and history are relevant to his behavior.
And so, I think that, you know, you talk about
unwarranted disparity. You know, if Mr. Gogolewski had stood
before this Court on the same offense in 2002, he would be
looking at 78 to 97 months. If he had been here in 2003, he'd
be looking at 135 to 168. And these -- my point on the
guidelines is that these changes, and you could go back even
further, are not explained by research, and the study of
empirical data. They're basically explained by -- to a large
extent by political posturing.
You know if -- Congress is not sentencing Mr.
Gogolewski today, this Court is, and if Congress wanted to tie
the Court's hands, Congress could mandate a mandatory minimum
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of 10 years instead of five years, but it hasn't done so. So
we're asking the Court to look at Mr. Gogolewski as an
individual, and to impose a reasonably term of -- and a
substantial term of 10 years.
I'll submit it with that, Your Honor.
MR. AUSA: Your Honor, if I could just briefly
respond to two points?
THE COURT: Sure.
MR. AUSA: One, on the issue of going back in time,
and if the defendant had been here several years ago, I think
that's partly the reason why the guidelines have gone up,
because Congress and the Sentencing Commission have looked at
the offenses, and they've understood how these are so serious,
and the impact that it has on victims, and the sentences that
were resulting, and the departures that were being granted, and
first, where the protect act obviously tried to temper the
discretion of the courts, but now that's to a large extent been
restored.
But the point is, we could go back even further in
time, go back 20 or 30 years ago when there were no statutes.
Go back to when it was not a crime to look at, or have, or
produce child pornography. I don't think we want to do that.
So I think that the fact that the penalties have gone
up reflects the understanding of the Sentencing Commission and
the Congress on that topic.
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MR. DEFENSE ATTORNEY: However -- I'm sorry.
MR. AUSA: And the final point, Your Honor is, in
reference to the timing of the cases that the government has
cited in its argument to avoid unwarranted sentencing
disparities, even just by looking at the dates of the filings
of the cases, but more importantly the sentencings, those are
all after Booker and Emline (phonetic) and were in the context
where the Court did not have to follow the guidelines.
Those are the two points, Your Honor.
MR. DEFENSE ATTORNEY: Your Honor, just one point, and that is
on when the law really started to change, and I would say that
the really significant changes have occurred, I would say,
January of 2008, and the Ninth Circuit, specifically Zavalla
and Cardi were filed in March of 2008. So I do believe that
there have been very recent changes.
And again, I'm not suggesting that the Court -- the
Court can follow the guidelines, of course the Court can. I'm
just arguing that under current law, the guidelines are
not -- don't have greater weight than other factors and should
not be presumed to be correct, and that Mr. Gogolewski is
entitled to individualized consideration.
I'll submit it, Your Honor. Thank you.
THE COURT: All right. Any legal cause why sentence
should not now be imposed?
MR. DEFENSE ATTORNEY: No, Your Honor.
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THE COURT: All right. Okay. In this case I have
received and reviewed the presentence report, also the filings
by the parties, and I have considered every one of them. I
think they're important to this case.
I have considered the government's citations to the
cases within this district for sentencing, and also the defense
study by Mr. Stabenow, S-t-a-b-e-n-o-w. I'm also certainly
cognizant of recent cases in this Court, one very recently in
which an individual went to trial and was sentenced. So I
understand and I think as was pointed out, even Mr.
Gogolewski's support letters all indicate that punishment is
warranted in this case.
Congress has made it clear, and both parties have
pointed out how the sense of the penalties, both through
Congress in terms of mandatory minimums, factors to be
considered by the protect act, the Adam Walsh Act, the
Sentencing Commission determinations as to guideline
calculations are all significant, and the Court, in term of the
need for the sentence imposed, the Court does recognize the
seriousness of the offense, in that it involves numerous
victims -- underage victims who are essentially victimized
because there is a market for this kind of activity.
And it is important for the Court, when imposing a
sentence, to keep that in mind. And that the sentence imposed
by the courts in these kinds of cases do serve, or hopefully
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serve as adequate deterrents to criminal conduct both for the
person being sentenced, and for the community at large.
It is important to protect the public from any
further crimes of the defendant. The defendant does have a
prior conviction, not related to this type of offense, but he
does have a prior conviction which the Court will consider. It
is important and the medical reports submitted by the defense
agree that Mr. Gogolewski certainly needs correctional
treatment.
So I find with respect to the advisory sentencing
guidelines, the parties agree, and I've reviewed these, and I'm
satisfied that the guideline calculations are correct,
including the enhancement of 2(g)2.2(b)(3)(B), distribution for
things of value. In this case, Mr. Gogolewski did trade
certain images he possessed for other images possessed by
others.
The government has pointed out in its sentencing
memorandum the relative widespread nature of the distribution
covering a number of contacts in a number of different states
in a relatively short time frame, from March 18th, 2006 to
April 12th, 2006, which gives the Court some indication as to
the widespread nature of the distribution.
So I find that under the advisory guideline
sentencing that the sentencing calculation -- the guideline
range has been accurately calculated, and under the advisory
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sentencing guidelines, the total offense level is 37, the
criminal history category is 2, the advisory sentencing
guideline range is 235 to 230 -- 293 months. The
recommendation is the low end, which is 235 months.
I can now turn to the -- and I will factor that in
under the relevant factors under 18 United States Code Section
3553(a). I've already discussed the nature and circumstances
of the offense with respect to the number of images involved in
this case by Mr. Gogolewski on the fact that there was a
relatively extensive distribution of materials that he had in
his possession as he traded with other individuals.
I've already noted the seriousness of the offense,
and the need to promote respect for the law, and an adequate
deterrence to criminal conduct, and to protect the public from
any further crime by Mr. Gogolewski, and to provide him with
needed correctional treatment as outlined by the two medical
reports.
I recognize the kinds of sentences that are
available, and the kind of sentence and the sentencing range
set forth in the guidelines. My bit concern with this case is
this, as Mr. DEFENSE ATTORNEY has pointed out:
Under the advisory sentencing guidelines, if I were
to follow that, he pretty much fits the max. He's within just
a few months of the maximum, 240 months.
I've reviewed the cases submitted by the government.
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I know that some of those cases were beyond that, and I don't
profess to try to -- have tried to delve into each of those
cases to determine why the court felt it was a reasonable -- I
mean, as I indicated earlier, I looked at those cases, and the
cases submitted by the defense in the study, and recent cases
in this Court, to get an understanding of what would be a
reasonable sentence to avoid unwarranted sentence disparities.
My concern in this case is I don't think this is a
maximum sentence case. Certainly Congress has set parameters,
the minimum is 60 months, or five years, the maximum is 20
years, or 240 months. The task for this Court under case
authority, and not disregarding the sentencing guidelines, I
think they are very significant, they do give the Court
tremendous guidance in terms of what a reasonable sentence
would be. I recognize how the sentence imposed must not be any
greater than necessary to accomplish the statutory purposes of
sentencing, which I've already outlined.
The problem with giving a maximum sentence in this
case is that it really does create possible unwarranted
sentence disparities, and virtually ties the hands of the
Court. I can think of many possible situations where I would
max somebody out, someone with much greater criminal history,
especially a criminal history that involves abusive type
conduct, cases where there was more widespread distribution,
including distribution for profit, monetary profit, situations
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where there are more egregious situations of taking advantage
of minors, such as actually using minors, photographing them
personally, and then distributing those for profit.
Those are the kinds of cases that I think under the
current statutory scheme, sentencing scheme that is available
to the Court that might warrant maxing somebody out.
I recognize that there are a number of factors in
this case that I need to consider in terms of a reasonable
range. I don't think that this is close to the mandatory
minimum six months sentence -- 60 months because of the number
of images involved with Mr. Gogolewski and the fact that he did
distribute fairly widely with other individuals.
So I'm going to take into consideration also his
characteristics including his young age. He had a very
difficult upbringing, very abusive, and very difficult
childhood. He does have some mental health issues that have
been outlined through the two medical reports.
I do recognize that a recent Ninth Circuit case
United States versus Stoterau, S-t-o-t-e-r-a-u, filed April
29th, 2008, which went through a number of different arguments
with respect to a similar type of a case.
The Court did note that in terms of a reasonable
sentence, that in that case the defendant, or felon had
indicated that he had a difficult childhood, an abusive
childhood, he had mental health issues, he had a lifelong
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struggle with methamphetamine addiction, and offered those as
mitigating considerations, which the Court apparently rejected,
and the Ninth Circuit did indicate, then, those considerations
weren't so special as to render his overall sentence
unreasonable.
So I recognize that those factors in and of
themselves are not necessarily factors that the Court should
consider in terms of a reasonable -- well, they're factors the
Court should consider, but shouldn't give it undue weight.
I don't know what was presented to the sentencing
court, or the appellate court in that case, but I do know in
this case that there were two medical reports that were
submitted, and they both indicate in great detail the abusive
background of Mr. Gogolewski, the impact that that undoubtedly
had on him, his upbringing and why he's in the situation he is
today.
It would indicate positive aspects in terms of
possible treatment that would minimize, or negate any possible
further crimes by the defendant, and assuming there is proper
correctional treatment, that the public would be protected by a
reasonable sentence imposed by this Court with a lengthy period
of supervised release.
So in this case, taking into consideration all those
various factors under 3553(a), and I do note the justification
section of probation report at paragraphs 64 through 67, the
22
report does point out the number of images, and his prior
conviction, the fact that he exchanged pornography with others,
the probation office also notes, however, his young age, lack
of a prior criminal sophistication, a troubled childhood, I
find on balance overall, looking at the overall sentence --
Now, it's possible that Congress the next go-around
could make the -- make it a 30 year max with a 10 year minimum,
that's certainly Congress's discretion. I have no quarrel with
that. Right now I'm within the parameter of 60 months to 240
months.
I find in this case that a reasonable sentence that
would provide for the statutory purpose of sentencing in this
case would be 15 years, which is 180 months. That's something
less than, obviously, that the probation office recommended. I
think it's appropriate in this case, and I think that rather
than the 10-year, a 20-year term of supervised release would be
appropriate. And the reason for that is just doing the math,
with a 15-year sentence, and a 20-year supervised release term,
it would be 35 years.
Mr. Gogolewski is 24 year sold, so even if he gets
out early, an early release, he's still going to be in his
fifties by the time he's free from supervised release and the
control of the Court unless, of course, he re-offends. But I
would think under all circumstances that that would be
sufficient in this case to protect the public and to punish Mr.
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Gogolewski.
Therefore, pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that you are hereby
committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 180 months on count one. It's my
understanding that the government would dismiss count two in
light of recent appellate court decisions, so I'm not going to
impose anything as to count two.
But the total term of imprisonment, then, on count
one, is 180 months. You shall pay a special assessment of
$200, payments to begin immediately. I find that you do not
have the ability to pay a fine. Imposition of a fine is
waived.
Now, if it turns out that a dismissal would result in
an automatic reduction of the special assessment to $100, I
don't have any problem with that.
Upon release from imprisonment, you shall be placed
on supervised release for a term of 240 months on count one for
a total term of 240 months on supervised release.
Within 72 hours of your release from the custody of
the Bureau of Prisons you shall report in person to the
probation office in the district to which you are released.
While on supervised release, you shall not commit another
federal, state, or local crime. You shall not possess a
firearm as defined in 18 United States Code Section 921. You
24
shall not illegally possess controlled substances.
You shall submit to the collection of DNA. You shall
comply with the standard conditions which have been recommended
by the United States Sentencing Commission and adopted by this
Court. You shall register and comply with the requirements in
the federal and state sex offender registration agency in the
state in the jurisdiction of conviction, that is, the Eastern
District of California, and in any jurisdiction where you
reside, where you're employed, or where you are a student.
The mandatory drug testing condition is suspended
based on the Court's determination that you pose a low risk of
future substance abuse.
You shall also comply with the following special
conditions: one, you shall provide the probation office with
access to any requested financial information. Two, as
directed by the probation officer, you shall participate in a
program of mental health treatment. Three, as directed by the
probation officer, you shall participate in a copayment plan
for treatment or testing and shall make payment directly to the
vendor under contract with the United States Probation Office
of up to $25 per month.
Four, you shall submit to the search of your person,
property, house, residence, vehicle, papers, computer, or other
electronic communication or data storage devices or media, and
in effects -- and effects at any time with or without a warrant
25
by any law enforcement officer or probation officer in the
lawful discharge of the officer's supervision functions with
reasonable suspicion concerning unlawful conduct, or a
violation of a condition of supervised release.
Five, you shall not possess or use a computer, or any
other device that has access to any on-line computer service.
This includes any internet service provider, bulletin board
system, or any other public or private computer network.
Six, you shall have no contact with children under
the age of 18 unless approved by the probation officer in
advance. You are not to loiter within 100 feet of schoolyards,
parks, playgrounds, arcades, or other places primarily used by
children under the age of 18. This shall include that you are
not to engage in any occupation either paid or voluntary, which
exposes you directly or indirectly with children under the age
of 18.
Seven, you shall consent to the probation office
and/or probation services representative conducting periodic
unannounced examinations of (a) any computer, or (b) computer
related device, or (c) equipment that has an internal or
external modem which is in the possession or control of you.
You are to consent to retrieval and copying of all
data for such computer, computer related device, or equipment,
as well as any internal or external peripherals to ensure
compliance with conditions. You shall consent to removal of
26
such computer, computer related device and equipment for
purposes of conducting a more thorough inspection and analysis.
You are to consent to having installed in the
computer, computer related device and equipment, at your
expense, any hardware or software systems to monitor the use of
such computer, computer related device, and equipment at the
direction of the probation officer.
And you're to agree not to tamper with such hardware
or software, and not install to use any software programs
designed to hide, alter, or delay your computer activities.
You shall consent to not installing your hardware
without the prior approval of the probation officer.
Eight, you shall not possess, own, use, view, read,
or frequent places with any sexually explicit material in any
form that depicts children under the age of 18. Sexually
explicit conduct is defined at 18 United States Code Section
2256(2), and means actual or simulated (a) sexual intercourse,
including genital to genital, oral/genital, or oral/anal,
whether between the same or opposite sex; (b) bestiality; (c)
masturbation; (d) sadistic or masochistic abuse; or (e)
lascivious exhibition of the genitals or pubic area of any
person under the age of 18.
Nine, you shall provide all requested business and/or
personal phone records to the probation officer. You shall
disclose to the probation officer any existing contacts with
27
telephone line and/or cable service providers. You shall
provide the probation officer with written authorization to
request a record of all outgoing or incoming phone calls from
any service provider.
Ten, you shall consent to third party disclosure to
any employer, or potential employer concerning any computer
related restrictions that are imposed upon you. This includes
any activities in which you are acting as a technician, advisor
or consultant with or without any monetary gain or other
compensation.
Eleven, you shall attend cooperate with and actively
participate in a sex offender treatment and therapy program as
approved and directed by the probation officer and as
recommended by the assigned treatment provider.
All right. Mr. Gogolewski, do you understand the
sentence imposed by the Court?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. Is he requesting a specific
designation?
MR. DEFENSE ATTORNEY: Yes, Your Honor. We would ask that the
Court recommend designation to an institution in the State of
Florida, as he has family there.
THE COURT: All right. I will make that
recommendation. That is subject to space availability and
security considerations.
28
All right. In this case, you do have the right to
appeal your sentence and your case. If you desire to appeal,
you must file your notice of appeal in writing with the Court
within 10 days of today's date. If you cannot afford an
attorney for your appeal, the Court will appoint one for you.
Do you understand your appeal rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Anything further on behalf of the
defendant?
MR. DEFENSE ATTORNEY: No, Your Honor. Thank you.
THE COURT: Anything further on behalf of the
government?
MR. AUSA: Your Honor just to confirm, what was the
term of supervised release?
THE COURT: 240 months, 20 years.
MR. AUSA: Okay. And Your Honor, to the extent it's
necessary, at this time, the government moves to dismiss count
two.
THE COURT: All right. That motion is granted.
MR. DEFENSE ATTORNEY: Thank you, Your Honor.
THE COURT: Okay.
MR. AUSA: Thank you, Your Honor.
MR. DEFENSE ATTORNEY: Oh, Your Honor, excuse me. When --
since count two is dismissed, would the Court -- shouldn't he
have a special assessment of $100?
29
THE COURT: Yeah, let me reduce that to $100.
MR. DEFENSE ATTORNEY: Okay. Thank you, Your Honor.
THE COURT: All right.
(Whereupon the hearing in the above-entitled matter was
adjourned at 10:39 a.m.)
--o0o--
CERTIFICATE
I certify that the foregoing is a correct transcript from
the electronic sound recording of the proceedings in the aboveentitled
matter.
September 22, 2008
Transcriber
Post by Public Internet RecordsRobert Gogolewski, 24, who was stationed at Lemoore Naval Air Station, was
sentenced Monday to 15 years in federal prison and 20
years probation on child pornography charges. He also will be required to
register as a sex offender after his release.
The prosecutor said Gogolewski came under investigation after he attempted
to transmit two child pornography images in a January
2006 e-mail.
America Online detected the images and referred them to analysts at the
National Center for Missing & Exploited Children, which then
turned the information over to federal agents in Fresno.
When a search warrant was executed at Gogolewski's residence on LNAS,
agents found more than 900 still and 24 video images of
child pornography.
From FresnoBee.com new briefs "Child porn nets 15 years"
http://www.fresnobee.com/local/crime/v-printerfriendly/story/743316.html
130 child pornographers netted in sweep of valley. The Fresno Bee 11/03/06
Nov. 3, 2006 --Federal law enforcement officials on Thursday said more
than 130 Central Valley sex offenders were arrested in a recent
sweep that highlighted Project Safe Childhood, a national initiative that
focuses on Internet sex crimes committed against children.
The arrests, said the U.S. attorney for the Eastern District of
California, covered crimes from possession and distribution of child
pornography to failure to comply with state-mandated sex registration
statutes.
During a news conference at the federal courthouse in Fresno, the US
Attorney said the Internet has been one of the great developments
of our age, but one that "has a dark and sinister side" that has driven a
"modern-day crime wave" centered on child predators.
Surrounded by local, state and federal law enforcement officials, he said
the recent three-day multiagency operation sweep, known as
"Operation Valley Predator," will be a regular occurrence, as will law
enforcement efforts to work together, as part of Project Safe
Childhood.
The initiative of the U.S. Department of Justice is designed to increase
federal and state prosecutions of violent sexual predators of
children.
Robert Gogolewski, who is stationed at Lemoore Naval Air Station, was
arrested on child pornography charges in San Diego, where he
was being held by the U.S. Navy on unrelated charges, according to federal
officials.
According to an affidavit by ICE agent John Simmons, Gogolewski was
tracked down after the online service provider America Online
notified the National Center for Missing and Exploited Children of
possible child pornography being sent via e-mail.
************************
United States Attorney
Eastern District of California
FOR IMMEDIATE RELEASE
Monday, July 21, 2008
www.usdoj.gov/usao/cae
Docket #: 06-cr-347-AWI
FORMER ENLISTED NAVY MAN SENTENCED TO PRISON FOR
15 YEARS FOR TRAFFICKING IN CHILD PORNOGRAPHY
FRESNO, Calif.- The United States Attorney for the Eastern District of
California announced
that ROBERT GOGOLEWSKI, 24, formerly of Lemoore, California, was sentenced
by
the United States District Court Judge to 15 years to be followed by a
20-year term
of supervised release for receipt and distribution of images of minors
engaged in sexually
explicit conduct. GOGOLEWSKI will be required to register as a sex
offender, and his access to
minors, computers, and the internet will be restricted.
This case is the result of an investigation by the Naval Criminal
Investigative Service in
Lemoore, California and the U.S. Immigration and Customs Enforcement (ICE)
office in Fresno,
California., with assistance from the Fresno County Sheriff's Department
Computer Crimes
Unit.
According to the assistant United States Attorney who prosecuted the case,
GOGOLEWSKI became the
subject of investigation after he attempted to transmit on January 19,
2006, two images of child
pornography as attachments to an e-mail message using America Online
(AOL). AOL detected
the two images and referred them to analysts at the National Center for
Missing & Exploited
Children (NCMEC) through its CyberTipline. NCMEC then provided the Fresno
ICE office on
January 25, 2006 with sufficient information to identify GOGOLEWSKI as the
individual
responsible for transmitting the illegal images.
When a search warrant was executed at his residence on the Lemoore Naval
Air Station,
agents located more than 900 still and 24 video images of child
pornography saved on the
defendant's computer. Subsequent forensic review of the computer revealed
a "Buddy List"
entitled "Good Trade" that led to the identification of approximately two
dozen other persons
involved in trafficking child pornography images.
GOGOLEWSKI has been in federal custody, as a danger to the community and a
flight
risk, since December 11, 2006. Before that he was in military custody as a
result of his arrest on
June 27, 2006, and subsequent conviction for military charges related to
explosives found at his
residence.